Mukesh Kumar vs The Board Of Secondary Edu
2022 Latest Caselaw 4288 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

                 S.B. Civil Writ Petition No. 4157/2009

Mukesh Kumar S/o Shri Nanadi Lal, aged 34 years, Class-IV
Employee-Board Of Secondary Education, Rajasthan, Ajmer, Plot
No.18, Jyoti Nagar, Nagfani, Ajmer.
                                                                   ----Petitioner
                                    Versus
The Board Of Secondary Education, Rajasthan, Ajmer, Through
Its Secretory.
                                                                 ----Respondent

For Petitioner(s) : Mr. Ashish Saksena, Adv. For Respondent(s) : Mr. Prahlad Singh, Adv. with Mr. Gaurav Singh, Adv.

HON'BLE MR. JUSTICE SAMEER JAIN Order

29/06/2022

1. Present petition is filed with following prayers:-

"(i) An appropriate writ, order or direction to the respondent for regularisation of his services on the post of Class-IV employee with effect from 25.09.1003, the date of his initial appointment with consequential benefit to regular pay scale.

(ii) An appropriate writ, order or direction to the respondent to pay him minimum in the scale of pay of Class-IV employee along with arrears of regular pay scale w.e.f. 25.09.1993 up till now with interest @ 18%.

(iii) An appropriate writ, order or direction to the respondent to consider the petitioner for promotion on the post of L.D.C./U.D.C. as per seniority of the year 1993.

(iv) Any appropriate writ, order or direction to the respondent to quash any adverse order passed against the petitioner for discontinuation of his services/retrenchment pending the writ petition.

(v) Any other appropriate writ, order or direction to the respondents which this Hon'ble Court

(2 of 5) [CW-4157/2009]

deems just, and proper in the circumstances of the case.

(vi) Cost of the writ petition."

2. Learned counsel for the petitioner submits that

petitioner was appointed by Secretary, Board of Secondary

Education, Rajasthan, Ajmer against a vacant regular post of

Class-IV employee on 25.09.1993. Thereafter, he was discharging

his duties of Class-IV employee in the respondent's office sincerely

and has never been subjected to discontinuation or break in

service. He was paid minimum wages per day since September

2003. In February 1996, the daily wagers were

selected/regularized on Class-IV employee but petitioner was

discriminated with and was deprived from the benefit of

regularization, despite his seniority. He further submits that the

petitioner was terminated on 23.11.1997. Against said termination

order, petitioner raised a dispute and the same was referred to the

Industrial Court, Ajmer, on the reference:-

"Whether the termiantion of the workmen, Mukesh Kumar

son of Anandi Lal on 23.11.1997 by the Secretary, Board

of Secondary Education, Rajasthan, is legal? If not, to

what relief the workman is entitled for?"

Vide order dated 16.06.2006, it was held that the

termination was without compliance of provisions of Section 25-F

of the ID Act 1947 and as the juniors to the petitioner were made

permanent, the workman was held entitled to permanent status

and order of termination was quashed and set aside and

reinstatement was made on the post with 20% back wages.

Against the same, writ petition was preferred but the same was

dismissed. Thereafter, petitioner joined services and it is

categorically submitted that from reinstatement date, i.e.

(3 of 5) [CW-4157/2009]

03.03.2008, the petitioner has been discharging his duties,

regularly on the post of Peon without any gap and as such the

petitioner is entitled for regularization in terms of Hon'ble High

Court order dated 12.08.2016 in SBCWP No. 18889/2013 titled

Shiv Karan & Ors. Vs. State of Rajasthan & Ors., wherein the

Hon'ble Court, in case of similarly situated persons, has held that

unskilled daily wagers, appointed subsequent to the petitioner,

were entitled for regularization.

3. Learned counsel for the petitioner has also relied upon

the judgment in the case of Bhagwan Sahai Vs. Udyog

Bhawan Common Facility Jaipur & anr.: 2009 (1) WLC 524.

In the said case, the petitioner was reinstated in service as his

termination was held illegal. It was held that the petitioner should

also be held entitled to all those benefits (including regular pay

scale and regular status) from such dates as given to similarly

situated persons on ground of parity. In the light of the above,

learned counsel for the petitioner request to grant the prayer

sought in the petition.

4. Per contra, learned counsel for the respondent has submitted

that the foundation of the case of the petitioner is on wrong facts.

He was given seasonal/special time engagement during course of

examination which was conducted by Board of Secondary

Education, Praveshika, Varishtha Upadhyay etc. wherein conduct

of examination involves huge task and unskilled labour is required

to be engaged in addition to regular employees. Learned counsel

further submits that the petitioner has not been engaged with

Board of Secondary Education, rather he was engaged in his

personal capacity and not as an employee of the Board of

Secondary Education. Learned counsel for the respondent has

(4 of 5) [CW-4157/2009]

further relied upon the judgment in the case of State of

Karnataka & Ors. Vs. Uma Devi & Ors. reported in (2006) 4

SCC 1 and has submitted that engagement of petitioner was

through backdoor and was not done in regular manner, by way of

advertisement, as was done in the case of similarly situated

persons.

5. Heard the respective advocates for the petitioner as

well as respondent, scanned the record of the writ petition,

considered the judgment cited at bar.

6. On consideration of all, first reliance placed by this

court is upon the judgment of Labour Court dated 16.06.2006,

wherein after considering the termination order, the learned

Tribunal/Court held that once the similarly situated persons were

made permanent, the petitioner could not have been terminated.

Learned Tribunal/Court has further held that in the case of Class-

IV employee, there is no backdoor concept. The said order was

unsuccessfully challenged and has thus attained finality.

7. It is also a fact on record, which is not disputed, that

after passing of the said order, from 2008 till 2016, while filing

representations, the petitioner was rendering his services

uninterruptedly to the Board/respondent. It is also noted that the

judgment relied upon by the petitioner in the case of Bhagwan

Sahai (supra) is squarely applicable in the given case as in the

case of Bhagwan Sahai (supra), regular pay scale in vacant

post was given to similarly situated person and in the case in hand

also similarly situated/juniors to the petitioner were given

regularization but the petitioner has been discriminated with and

deprived of his right. Once benefit is extended to similarly

situated persons, there is no justified reason to discriminate with

(5 of 5) [CW-4157/2009]

the petitioner and he has to be entitled for the benefit. Even the

judgment of Hon'ble Apex Court in the case of Uma Devi

(supra), cited by learned counsel for respondents, supports the

case of the petitioner wherein it has been held that exception

should be given to Class-IV employees if they have continued to

work for 10 years as a one time measure. In the case in hand, it

is admitted case that for the last 14+ years, after passing of order

of the learned Tribunal/Court, the petitioner is rendering service

uninterruptedly/prominently. It indirectly suggest that there is

requirement of work and only on account of dispute, regular

appointment was not made.

8. In the light of the above reasoning, considering the

facts on record, this court deem it appropriate to allow the writ

petition and direct the respondents to regularize the petitioner

with immediate effect, within a period of three months.

9. In the above terms, writ petition is allowed.

(SAMEER JAIN),J

Pooja /14

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